Ethical Dilemmas: Are You a Specialist?

Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel org tpierce wisbar Timothy Pierce and assistant ethics counsel org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

April 16, 2014 – This month’s Ethical Dilemmas question focuses on advertising and the reference to being a “specialist” within the guidelines of the Wisconsin Rules of Professional Conduct.

Question

My practice is limited to worker’s compensation cases, and I have been in practice for 12 years. I would like to advertise that “I specialize in worker’s compensation claims” or that “I am a workers’ compensation specialist.” Am I permitted to do so under the Rules of Professional Conduct?

Answer

A lawyer may state that he or she is a “specialist,” practices a “specialty,” or “specializes in” a particular field, but such statements cannot be “false and misleading.”

SCR 20:7.4(a) permits a lawyer to communicate that he or she practices in a particular field of law. SCR 20:7.4(d), however, prohibits a lawyer from stating or implying that he or she is certified as a specialist in a particular field of law, “unless the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association,” and the name of the certifying organization is clearly identified in the communication.

SCR 20:7.4(d) does not prohibit a lawyer from stating that he or she is a “specialist,” practices a “specialty,” or “specializes in” a particular field. The ABA Comment [1] to SCR 20:7.4 explains:

… A lawyer is generally permitted to state that the lawyer is a “specialist,” practices a “specialty,” or “specializes in” particular fields, but such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer's services.1

SCR 20:7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading under SCR 20:7.1 if “it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

Consequently, when a lawyer states that he or she is a specialist, that statement must not be a material misrepresentation or misleading. The lawyer must have some objective basis for that statement. On these facts, where the lawyer has practiced law for 12 years and has limited his or her practice to worker’s compensation cases for those 12 years, a reasonable person would not be misled by the lawyer’s statement that the lawyer “specializes” in worker’s compensation matters. Thus, SCR 20:7.4 would not prohibit this statement.

Endnotes

1 Some jurisdictions prohibit claims of specialization or expertise without an accompanying certification. A chart setting out each jurisdiction’s variations of Model Rule 7.4 can be found at www.abanet.org/cpr/pic/rule_charts.html.